The time and the place are the fitting setting for a discussion of the nationalism of the British Empire—that Empire which is more than a State, more than a union of States, greater than a confederation, more powerful than a league; an Empire composed of so many different, diverse and, at times, seemingly antagonistic elements that it has long been predicted by statesmen and theorists it would disintegrate at the first shock. The test has been met and endured. The British Empire is stronger because of the stress.

In a few hours there will be brought to a close the most blood stained year in all history. No man dare predict what misery or happiness the mystery of the new year will reveal, how many maps of Europe will be rolled up, who will make the penitential pilgrimage to Canossa, whether thrones will be shaken in the dust or nations survive; but one prophecy can be made, and for that the vision of the seer is not necessary. The events of the last eighteen months have proved to the world that the British Empire is bound by no frail rope of sand but is linked by bonds of steel. It is no weak structure built on shifting ground. It is an Empire of many races and creeds, but one in its unity.

This is a period of revaluations. The crucial tests that have been imposed within the last year upon so many nations by the stress of war have probably led most of us to question and perhaps to doubt old, and as we had believed, firmly, rooted tenets and dogmas. It is true that political science has long since abandoned the eighteenth century confidence in general theories and deductions; but there were many who had cherished at least a loyalty to certain fundamental political ideals: individualism, self-government, democracy; and even these are challenged by newly emphasized factors of strength and weakness that seem to determine the fate of nations. It behooves us now to be cautious in drawing premature conclusions from abnormal conditions, and to retain some faith in principles that have not been demonstrated to be unsound.

Amidst the confusion of political values we have all been impressed with the importance and with the achievements of technique, and we may be tempted to insist upon high technical standards in government as an undisputable political ideal.

“Of political principles,” says a distinguished authority, “whether they be those of order or of freedom, we must seek in religious and quasi-theological writings for the highest and most notable expressions.” No one, in truth, will deny the accuracy of this claim for those ages before the Reformation transferred the centre of political authority from church to state. What is too rarely realised is the modernism of those writings in all save form. Just as the medieval state had to fight hard for relief from ecclesiastical trammels, so does its modern exclusiveness throw the burden of a kindred struggle upon its erstwhile rival. The church, intelligibly enough, is compelled to seek the protection of its liberties lest it become no more than the religious department of an otherwise secular society. The main problem, in fact, for the political theorist is still that which lies at the root of medieval conflict. What is the definition of sovereignty? Shall the nature and personality of those groups of which the state is so formidably one be regarded as in its gift to define? Can the state tolerate alongside itself churches which avow themselves societates perfectae, claiming exemption from its jurisdiction even when, as often enough, they traverse the field over which it ploughs? Is the state but one of many, or are those many but parts of itself, the one?

Although British sentiment for several decades had been steadily growing more imperialistic, it was not until the outbreak of the war that the process was completed, and with dramatic suddenness. The “Little Englanders,” already dwindling in numbers, were confounded by the immediate and practical manifestations of colonial loyalty of which England was glad to avail herself. The murmurings of the anti-imperialist ceased in the face of such expressions of empire good-will as that contained in the message of the Canadian ministry to the British government on August 2, 1914. “If unhappily war should ensue,” ran the message, “the Canadian people will be united in a common resolve to put forth every effort and to make every sacrifice necessary to insure the integrity and to maintain the honor of our Empire.”

However, notwithstanding the impetus given by the war to the doctrines of imperialism and militarism, the believer in the principles of internationalism cannot be denied a crumb of comfort from the same event. He clings to the hope that the worldwide war, through its very enormity, will actually serve to preach peace more effectively than any pacifist can possibly do, and that international arbitration and simultaneous suppression of armaments among civilized peoples may therefore be hastened.

When the British parliament passed a vote extending the life of the existing house of commons, whose duration would otherwise have terminated in January, 1916, their action attracted little attention and aroused but slight opposition. The forces of the empire, engaged in a desperate war, must not be dissipated by an appeal to the people, with the consequent evils of electioneering. Yet to the student of politics this action has a profound interest. One of the cardinal features of the legislation of 1911 had been the quinquennial duration of parliament—a provision which, as the debates show, was essential to the whole compromise. Yet in an unforeseen crisis, the legislature by its own resolution could provide an extension of its life, and thus postpone the date of accountability to the people. No political measure could furnish so striking a test of the flexibility of the British system, its adaptibility to emergencies, and its reliance upon a practically omnipotent legislature.

In this paper we shall trace the principal statutes which limit the parliamentary term and the intervals between parliamentary sessions. There are five such laws, each bearing a date full of significance in English constitutional history. The first three statutes, passed in 1641, 1664, and 1694, were triennial acts, though in different senses; the fourth statute, passed in 1716, was the familiar septennial act under which parliaments were so long regulated; the last permanent legislation on the subject was the parliament act of 1911 fixing a five-year maximum duration, and it still remains law though temporarily suspended in 1916.

One of the most striking features of our constitutional law is the persistent purpose to protect the liberties of the people from arbitrary power by vesting the functions of sovereignty in three coördinate departments of government. This division is accomplished by express provisions in some state constitutions and by necessary implication in all constitutions, federal and state. By judicial construction the legislature may not exercise judicial or administrative powers; the executive may not exercise legislative or judicial powers, and the judiciary is denied the exercise of legislative or administrative powers. This fundamental principle of constitutional law is established by judicial decisions, both state and federal, of long standing and uninterrupted unanimity.

A commission is an administrative body; may it exercise judicial functions, and if so to what extent? The question involves, first, a definition of judicial functions; second, a statement of the exceptions to the rule that judicial powers may not be exercised by the administrative department; and, third, an appreciation of the relation of judicial determinations to the regulatory powers vested in commissions. We may then consider whether or not the present scope of judicial determinations by commissions, and the court review of such determinations, are satisfactory.

When the American government found itself in possession of the newly acquired portions of Spain's colonial empire, and particularly of the Philippines, it was forced to deal with many new and hitherto unfamiliar problems. Social, political and ecclesiastical characteristics were encountered there which were entirely foreign to American governmental traditions, but which were interwoven in the fabric of Philippine institutions and society by three centuries of Spanish rule. Among these was the universally recognized strength and importance of the ecclesiastical power, which in Spanish days had been fostered and protected by the state. Under the new conditions the ecclesiastical organization had to stand by itself, without governmental support.

Probably the most difficult problem which had to be solved was the celebrated friar land question. Thousands of hectares of the best land in the archipelago were owned or held by the religious orders. The friars had held these lands for centuries. The economic effect of these holdings was detrimental on account of the prohibitive rents which were demanded for them. The religious orders would not sell these lands of their own accord, and thus the Filipino agriculturists who desired to utilize them were prevented either from buying or renting. The government was also at a loss, since no taxes were paid on the lands of the church. This state of affairs was held by the American authorities to be inconsistent with the best interests of the Filipino people, and with the ideals of a free government.

The American people, especially in the eastern portion of the United States, are averse to political and social change particularly in institutions that have existed for a long period of time. A recent critic of American life has the following to say as a reason for this attitude of the American people:

“Among the many characteristics which foreign observers have ascribed to Americans are two about which there has been little difference of opinion. We are good-natured and we are individualists. Sermons have been preached against our good nature, so we need not dwell upon it. Much more important is our individualism—our absorption in individual interests and our reluctance to undertake things in combination with our neighbors or through the government. That individualism is an American characteristic is proved by a number of familiar facts. Thus the phrase ‘social reform,’ which in other countries suggests comprehensive plans of state action, is still usually associated in the United States with the welfare work of private corporations, private endowed schools of philanthropy…. Again, the coöperative movement which has made such signal progress in Europe, is in its infancy here.

That final legislative authority in this country is lodged in the letter of a constitution that is amended with the greatest difficulty, and with a supreme court which is entirely independent of electoral control has become a commonplace of political discussion.

To quote Professor Goodnow: “Acts of congress and of state legislatures are declared to be unconstitutional ‥‥ because they cannot be made to conform to a conception of the organization and powers of government which we have inherited from the eighteenth century;” and Dr. Blaine F. Moore: “If we may judge from the decisions based on the due process clause in the fourteenth amendment and applying to the States, the court has it in its power to make the similar clause in the fifth amendment cover practically all federal legislation dealing with new problems concerning which there are few or no precedents. If the court does make this entirely possible extension of its power, then the legislation dealing with the more recent and pressing questions is under the control of the popularly inaccessible justices of the supreme court.”

Both these quotations are from studies published before the adoption of the sixteenth and seventeenth amendments, but they are only a little less true now than then, as an analysis of the history of those amendments will show.

The unusual circumstances of the present diplomatic situation of the United States resulting from the European war and the revolution in Mexico have led the present administration to resort to the use of presidential diplomatic agents. The missions of ex-Governor John Lind and of William Bayard Hale to Mexico, and the errands of Col. E. M. House in Europe have aroused considerable discussion of their diplomatic status, which gives point to an effort to explain the basis for the employment of presidential special agents in diplomacy.

At no point is the Constitution more definite and specific than in dealing with the appointing power of the President. Part of Article II, Section 2 reads: “He shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The third section of the same article reads: “The President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.” There would seem to be no loophole here by which the President could either create an office not before existing, or, unless there is specific statutory warrant, appoint an individual to office without senatorial confirmation.

The nineteenth century, it is a commonplace to remark, witnessed a notable revival of nationalistic sentiment, the germs of which go back to the eighteenth, and the political consequences of which are in considerable part still outstanding. The emancipation of the Balkan States, the union of Italy, and the consolidation of Germany, were substantial, though incomplete, realizations of nationalism. The Germanization of Austria-Hungary, which had seemed inevitable, was brought to a halt by the national revival of Slav and Magyar. And today, not to mention the Irish situation, Eastern Europe is fairly alive with smaller nationalities seeking to gain or to maintain autonomous development. Nationalism, in spite of, or rather because of its being so largely a matter of sentiment, is the most active force in European politics. The dynastic system, certainly, is only a superficial relic of a past reality; loyalty to a dynasty, except as it is identified with nationalism, has lost its former significance. And on the other hand, a socialistic brotherhood which shall rise superior to the bounds of nationality is a dream of the future.

Administrative decisions in connection with immigration are in a different class from those of the interior department and those of the interstate commerce commission as explained in the preceding papers. The interior department deals with distributions of public property and the interstate commerce commission acts judicially with reference to private rights; whereas administrative decisions in connection with immigration determine some of the most sacred of private rights as a mere incident in the execution of a public policy.

The immigration service is within the general but minutely regulated administrative jurisdiction of the department of labor.

This is the tenth and youngest of those executive branches of the federal government that are administered by members of the president's cabinet. For its administration the present secretary of labor, who is also the original incumbent, is William B. Wilson, of Pennsylvania.

By administrative adjudication is usually meant the exercise of quasi-judicial functions upon and in the control of vested property rights, or personal rights secured by constitutional guaranties. It often accompanies and effectuates regulative power of a quasi-legislative nature. A large measure of this quasi-legislative power has been given to the departments and bureaus dealing with the lands of the United States, but the enforcement of such regulations, insofar as they affect rights of person or vested rights of property, is chiefly by process of the regular courts. Thus the regulation of the occupancy and use of lands reserved for national forests is entrusted to the secretary of agriculture. His regulations usually prohibit acts that were theretofore innocent and customary though not vested rights. Sometimes they restrict the use of land in which there exists a vested private right of use for a particular purpose only, but the restriction does not affect the right itself.

The development of government on American soil presents, as one of its features, the embodiment in its fundamental law of provisions for its modification. The early colonial charters kept alive the fiction that a form of government once established was supposed by its creators to last forever. Only the slow change of custom or the violence of a revolution could modify or destroy such a system of government, except, as in the case of the charters granted by the crown, a modification came as a consequence of the exercise of the royal prerogative.

In the Frame of Government drawn up by Penn and his colonists in 1683, appeared an amending provision for the first time in the history of written constitutions; and while all subsequent Pennsylvania charters contained a similar provision, the other colonial charters presented no method whatever for their alteration. Prior to the drafting of the Constitution of the United States, however, a method of amendment was embodied in the state constitutions of Delaware, Pennsylvania, Maryland, Georgia, Vermont, South Carolina, and also in the Articles of Confederation.

The appalling record of the past year and a half ought to make us, interested in international law, extremely modest. Professing that we expound international law as it is, we have been deluding ourselves and really setting forth international law as we believed that it ought to be. The universal bankruptcy of normal international relationships has shown to us how great a gap there is between that which we had conceived to be and that which really exists. Many of the foundations of international law we now see to have rested upon a conception of international society which did not really obtain. Perhaps, too, although professing contact with the actual, we have been living in an unreal world, a world wherein the ideal was given a much wider range and play than we were justified in believing. Any attempt to reconstruct the formal bases of international law—and such reconstruction must be made—must take account not only of the experiences of the present war, but of the long series of half-submerged elements which led to the present disaster almost with the inexorability of the forces of natural law. Shocked and benumbed as we are by the constant revelations of horror in these past months, there is also the awful realization that, after all, what has taken place has been largely the result of factors seemingly without immediate human direction.

It may be assumed at the outset that any government based on the democratic principle should, regardless of the form it may take, reflect existing public opinion. The actual method by which expression may be given to the will of the people is of secondary importance. We have relied, in the past, and are still relying on representative institutions for the performance of this prime function of democratic government. Although satisfactory results have, on most occasions, been obtained, numerous instances are on record in which the action of the people's representatives has been at variance with definitely formulated public opinion. Such instances have been pointed to by critics as indicating serious defects in the working of the representative system.

To remedy these defects the devices known as the initiative and referendum were conceived and incorporated into many state constitutions. These instruments of government enable the voters, by means of the ballot, to supplant or supplement laws enacted by their representatives by laws of their own making. They were designed not to overthrow representative government but to prevent its diversion from its proper sphere of activity. When legislation does not seem to conform to public opinion the people may, by direct exercise of the law-making power, correct the error by popular vote, and the result is to be taken as the final word in determining what the will of the people really is on the subject in point. Public opinion is thus to find expression in the will of the electorate through the balloting process.

There is probably no problem in connection with the practical operation of the initiative and referendum on which opinions differ so widely as upon that of the proper safe-guarding of the petition. In every direct legislation State a petition is required to invoke either the initiative or the referendum; and in practically every State certain safeguards have been established either by constitutional provision or by statutory enactment, to prevent the initiative petition from being prostituted by unscrupulous enemies of direct legislation or by those whose zealous advocacy of the initiative and referendum overbalances their judgment.

At the outset, there is one proposition upon which all fairminded students of government will agree, namely, that if the initiative and referendum has been established in a state constitution as a part of the State's governmental machinery, its operation should not be impaired or destroyed by indirection. Let the enemies of direct legislation openly endeavor to abolish it by amending the constitution; but failing in this purpose, they should certainly not so hobble the initiative and referendum petition under the guise of safeguarding it, as to nullify the institution itself. The framework of government should not thus be made the victim of political tricksters. Accordingly any provision ostensibly to protect the petition from misuse, which in reality aims to prohibit its legitimate use, is utterly improper and unfit.

Since the United States has theoretically no police power, and since the federal Constitution is essentially a political document, the national judiciary must in the main use political clauses of the organic law as the basis for nullifying statutes. While clauses of this nature are thus frequently made to serve as a basis for the decisions, the great majority of statutes nullified by the United States supreme court have pertained in fact to economic and social rather than political matters. While the court has nullified in all about thirty-three federal statutes, the scope of this discussion will permit of a summary only of the more important statutes which have directly affected political questions.

The political principle of separation of powers has afforded the basis for the nullification of seven federal statutes. All these decisions have, however, affected the power and jurisdiction of the court itself; and in every jurisdictional case, with but one unimportant exception, the court has refused to accept authority which congress attempted to bestow upon it.

While the court has thus almost uniformly limited its authority in the jurisdictional cases, in one instance the principle promulgated was most momentous—the one laid down in Marbury vs. Madison.

The aim of the present paper is to describe the regulative powers granted to state boards of health, and to consider the wisdom of these grants as well as their validity as tested by the principle that the law-making powers granted to legislatures may not constitutionally be delegated by them to other agents of government.

State boards of health, while primarily administrative bodies, have generally a more or less extensive power to make regulations in supplement to and having the force of statute law. Questions thus arise as to the extent and validity of the ordinance-making powers granted. Does the power to make these regulations, having the force of law, change the nature of these boards? Under what conditions may they exercise their power?

If, for the moment, we can conceive of Uncle Sam as being Andrew Carnegie, of Carnegie's millions as unimproved real estate, and of Carnegie's intention to die poor, as Uncle Sam's liberal land policy, we can perhaps best picture to ourselves the public land administration in the United States in a nutshell. The government, like Carnegie, is unloading its vast wealth in a manner calculated to do the most good, and it is guarding itself continuously, although often futilely, from being imposed upon and cheated. The ownership of the public domain by the United States is of the highest possible title. There is no one to dispute the government's absolute ownership of it. There are no taxes to pay. The government is subject to no obligation to dispose of its land. It can keep or dispose of the land as it chooses.

In 1789 the United States government started as owner of practically all of the Northwest Territory. Later it acquired, what some geographers call the Southwest Territory, by further cession from the States. By purchase, discovery, annexation and conquest the United States acquired further holdings, so that with the exception of Texas and private holdings the government's fee simple title in the public domain extended from the thirteen colonies to the Gulf of Mexico, and from the Atlantic Ocean on the east coast of Florida to the Pacific and the Arctic Oceans.